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November 10, 2015
Articles

Striking Back—Federal Rule 37(c) and Untimely Expert Reports

By Puja Leekha and Molly E. Flynn

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A nineteenth-century army general is credited with saying, “Always mystify, mislead and surprise the enemy, if possible.” These tactics may lead to success on a battlefield, but in a courtroom, they run afoul of civil procedure rules. And although trial teams set up “war rooms” during trial, courts will sanction conduct resulting in unjustifiable surprise or prejudice to the opposing party. In mass tort trials, surprise often takes the form of untimely expert reports. Courts have broad discretion to sanction parties, ranging from fines and costs to complete exclusion of untimely opinion testimony. In some extreme cases, the exclusion of key expert testimony will lead to case dismissal. And because the courts of appeals review sanctions for untimely reports under an abuse of discretion standard, they are frequently affirmed. Whether a party needs to serve a late-disclosed report and avoid sanctions or objects to a report and seeks sanctions, the party’s arguments will be guided by the framework set forth in the Federal Rules of Civil Procedure 26 and 37.